1 69-Aux.] ST. LOUIS, I. M. & S. R. CO. V. STATE. 363 ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STATE. Opinion delivered June 8, 1901. VARIANCE—PLEADING AND EVIDENCE.—Where, in an action against a railroad company to recover - the statutory penalty for failure to signal. at a certain highway crossing, the evidence tends to show that the offense, if committed at all, was committed at a different crossine from that named in the complaint, the court should direct a verdict for the defendant. Appeal from Sebastian Circuit Court. EDGAR E. BRYANT, Judge. STATEMENt BY THE COURT. This is an appeal from a judgment against the appellant for $200 penalty, as provided in section 6196, Sandels & Digest. The complaint alleged that the railway company, operating its railway in the Greenwood district of Sebastian county, ran, or caused to be run, through said township, along the tracks of its road, a locomotive and train across the Greenwood and Scully-ville wagon road, in district numbered 13, in said township, going southward (the number of said engine being unknown), "without sounding a steam whistle or ringing a bell continuously for
364 T. LOt r IS, I. M. & S. R. CO. V. STATE. {69 ARK. 80 rodS, or at all, before sueh crossing; A plea . of not guilty was interposed by the railroad company. The evidence was that the 1 offeh§e Was committed, if committed at all, in crossing the Green-Wood and Racket City public road. The defendant, declining to introduce any evidence, asked that the jury be instructed to return a verdict for the defendant, "because of the insufficiency of the. evidence to support an adverse finding." • This instruction was refused, to *hi eh the defendant saved its exceptions. The tourt then eharged the jury as follows: "Gentlernen of the jury, the complaint alleges that the defendant, the St. Louis, Iron Mountain & Sonthern Railway Com.7 pay, is operating a line of railroad through Center township, in Sebastian county, across the Greenwood and liacket City read, district No. 6, in said township. "The complaint further alleges that on February 26, 1897, defendant, by its servants and . employees, ran, or caused to be run, alorig the track of its said railroad, a locomotive and tender across said road, which may be known as the 'Greenwood find Racket City Road,' the number of said locomotive being 441, as plaintiff is informed, running south backward without sounding a whistle or ringing a bell, about 2 o'clock p. M., the hour not heft exactly kno*n. "In . this character of easeS, gentlemen, it becomes neeessary for the state, in Order to recover, to prove, by a fair preponderance of evidence, the facts as alleged in the coMplaint. And the facts mist be pre y ed exaetly aS alleged. "It becomes necessary for you to aid that said lodoniotive was a locomotive and tender; that it was running backwards; that it. was No. 441; that it ran across the crossing on the Greenwood and Racket City road; and that it failed to sound a steath whistle or ring a bell continuously for 80 roads before said crossing. "The penalty is $200 if the defendant is found guilty. If You find: for the defendant, it Would SiMply be a Verdiet of not guilty for the defendant." The defendant objected separately and ptoperly to eaeh paragraph of said charge at the tifne it W'as given; bUt Said ObjectionS were oierrilled, and all separate and proper eXcep'tions saved. The jury returried a verdict in favor of plaintiff for $200. Iietendant filed its raetion foi . a neW trial, Which WaS oVerruled, exceptions saVed, and defendant apPealeil.
69 ARK.] 365 Oscar L. Miles and Dodge & Job.nson, for appellants. The judgment is not sustained by the evidence. There is an utter failure of proof upon the allegation as to the "Greenville and Scullyville road.' , ' Sand. & H. Dig., § 5766; Newman, Pl. 723; 3 E. p. Smith, 408; 10 How. 321 ; 1 Abb. 237; 28 Barb. 441; 10 N. Y. 254; 2 Comst. 506; 1 Russ. &lne, 527; 2 Dan. Ch. Pr. 240; 2 N. Y. 506, 507. The evidence also fails to piove the time as set out in the complaint. Jeff Davis, Attorney General, and Chas. Jacobson, for appellee. - The indictment was sufficient. Cf. 58 •Ark. 39. The court takes judicial notice of geographical facts. 53 Ark. 48; 29 Ark. 293; 7 Pet. 324. HUGHES, J., (after stating the facts.) The evidence in this case fails entirely to sustain the allegations of the complaint. The complaint alleges that the offense was committed at or near the Greenwood and Scullyville wagon road, while the evidence tends to show, if committed at all, it was committed in failing to ring the bell or sound the whistle when about to cross the Greenwood and Hackett City public road. it seems that the court must have made a mistake in stating the case to the jury. The court committed error, we think, in not instrueting the jury to find for the defendant, and in its charge to the jury, which is without evidence on which to base it. Reyersed and remanded for a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.